J. Christopher Corkery

This costs endorsement follows the successful motion by Batavia Developments Inc. to discharge a certificate of pending litigation.

The plaintiff sought full indemnity costs, relying on a contractual provision and the conduct of the defendant, Mr. Mohsini.

The court found no reason to depart from the contractual term and awarded the full amount sought.

The plaintiffs in a medical malpractice action sought to amend their Statement of Claim to add a proposed defendant, Dr. Sharon Koren, after the two-year limitation period under Section 38(3) of the Trustee Act had expired.

The court dismissed the motion, finding that neither the common law exception of fraudulent concealment nor special circumstances applied to extend the limitation period.

The court noted that Dr. Koren's error in sending an erroneous consult note was made in good faith and corrected promptly, and that the plaintiffs were aware of Dr. Koren's involvement well before the limitation period expired.

The court also gave little weight to the plaintiffs' counsel's affidavit due to issues of privilege waiver and hearsay.

The appellant, Jian Huang Cheng, appealed a Small Claims Court decision concerning the division of condominium sale proceeds and the dismissal of a third-party claim for unpaid rent.

The trial judge found no agreement regarding the condo proceeds and allowed a set-off for the appellant's share of rent against the main plaintiff, but dismissed the third-party claim against the tenants (the main plaintiff's parents).

The appellate court, applying a standard of palpable and overriding error for factual findings and correctness for legal questions, upheld the trial judge's findings.

It found no error in the trial judge's application of contract law regarding acceptance, noting that depositing funds did not necessarily constitute acceptance in this context.

The court also refused to consider new issues (revocation and estoppel) not raised at trial.

The dismissal of the third-party claim was affirmed as consistent with the set-off granted.

The defendants, a land surveying company and an employee, brought a motion for summary judgment to dismiss the plaintiffs' negligence claim.

The plaintiffs alleged that the defendants' reference plan incorrectly depicted a property boundary, leading to loss of access to their mill.

The defendants argued the claim was statute-barred by the Limitations Act and constituted an abuse of process due to prior related litigation.

The court dismissed the motion, finding that the claim was discovered within the two-year limitation period when the plaintiffs first learned the boundary might be wrong (August/September 2015), and that the action was not an abuse of process as it concerned distinct factual allegations from previous claims.

The appellant, A.I., appealed his convictions for one count of assault and three counts of sexual assault.

The appeal primarily argued that the trial judge misapplied the rule in Browne v. Dunn by finding two breaches where none existed and by failing to allow counsel to respond to these findings.

The court found that the trial judge erred in concluding there were Browne v. Dunn breaches and in giving no weight to defence witness statements based on these erroneous findings.

Credibility was central to the trial, and the erroneous findings undermined the credibility assessment.

The appeal was granted, convictions quashed, and a new trial ordered.

This endorsement addresses the costs of a successful motion by the plaintiffs to amend their Statement of Claim, substituting "John Doe" defendants with specific named defendants (the Hurley defendants).

The plaintiffs sought partial-indemnity costs of $10,457.32.

The Hurley defendants argued for costs in the cause or a reduction in the amount.

The court, applying the principle that costs follow the event, awarded the plaintiffs $9,000 in partial indemnity costs, inclusive of HST, payable within 60 days.

The plaintiff moved to amend a judgment to replace initials with full names, arguing that the use of initials prevented discussion and enforcement.

The court had previously ruled that subsection 87(8) of the Child, Youth and Family Services Act, 2017, which prohibits identifying a child or their family, applied.

The court found it was not functus officio as no order had been entered.

It determined that using full names would pose a high risk of violating the Act, especially given prior related decisions that had used names.

The court dismissed the request to use full names in the public judgment but ordered that a new, sealed court file be created with the parties' full names for enforcement purposes, granting judgment of $25,000 against the defendants.

It also ordered that all related public decisions be amended to use letters (AA, BB, CC) instead of names or initials.

The plaintiff, AA, sued defendants BB and CC for intentional infliction of emotional distress, conspiracy, slander, and libel, alleging they conspired to make a false report to the Children's Aid Society.

The trial was re-opened after an initial decision dismissed the claim against CC and granted limited damages against BB.

Upon review of new evidence, including text messages, the court found that BB and CC acted in combination by agreement or common design to make a false report.

The court awarded AA general damages for intentional infliction of emotional distress and slander, and punitive damages, holding both defendants jointly and severally liable.

The claim for conspiracy merged with the other claims, and CC's statements to the Society were protected by qualified privilege.

The plaintiff, AA, sued defendants BB and CC for intentional infliction of emotional distress, conspiracy, and slander/libel, alleging they conspired to make a fabricated complaint to the Children's Aid Society (CAS).

The court dismissed all claims against CC, finding no evidence of flagrant conduct, harm, or conspiracy, and that her statements to CAS were protected by qualified privilege.

Against BB, the court dismissed claims for intentional infliction of emotional distress (due to lack of expert medical evidence) and conspiracy, but found BB liable for slander for making false allegations to CAS.

AA was awarded $5,000 in general damages and $5,000 in punitive damages against BB.

The appellant, Peter Bothwell, appealed his conviction for operating a motor vehicle with more than 80 milligrams of alcohol, arguing a violation of his s. 10(b) Charter right to counsel due to insufficient privacy during his calls.

At trial, the judge found no breach, concluding that Bothwell's concerns about privacy were remedied by him lowering his voice and that officers did not overhear his conversations.

The Superior Court, on appeal, upheld the trial judge's finding, determining that it was open to the trial judge to conclude that Bothwell had not met the burden of proving a Charter breach on a balance of probabilities, and that the finding was not a palpable and overriding error.

The appeal was dismissed.

This trial concerned whether Amanda Bowman had the implied consent of her mother, Christina Bowman, to drive her vehicle, which was involved in an accident with the plaintiff, Barbara Watts.

Liability and damages were agreed upon, with the sole issue being implied consent under the Highway Traffic Act.

The court found that Christina Bowman successfully demonstrated that Amanda Bowman did not have her implied consent, thereby absolving Christina Bowman of owner's liability.

Consequently, Western Assurance Company, the plaintiff's insurer, was ordered to pay the agreed damages and costs to the plaintiff, with statutory subrogation rights against Amanda Bowman.

The defendants moved for summary judgment, arguing the plaintiff's personal injury claim was statute-barred due to the two-year limitation period.

The core issue was discoverability, specifically whether the plaintiff exercised reasonable diligence in discovering the permanent and serious nature of her injuries, particularly regarding an MRI report.

The court found it reasonable for the plaintiff to defer to her doctors regarding MRI results and that her claim was not statute-barred, dismissing the motion.